TaxTMI 
TaxTMI 
2022 (12) TMI 1251
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.... post-decisional hearing, ostensibly in connection with alleged substitution of samples drawn from consignment imported against bill of entry no. 7869623/15.03.2022, M/s Daroowalla Bros & Company challenges the propriety of the deprivation in this appeal. That the appellant had filed the bill of entry at Jawaharlal Nehru Custom House (JNCH) for clearance of 44553 metres of 'PVC coated fabric width 54"' packed in 917 rolls valued at US $ 19,603.32 and that test report of Textile Committee, Nhava Sheva of sample received on 27th April 2022 indicated the goods to be 'polyurethane coated (PUC) fabric' is common ground. 2. Based on offence report dated 23rd June 2022, citing the discrepancy in test of samples, drawn on 24th March 2022 and forwa....
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....e request having been made on 1st September 2022 had denied them their right to effective defence. 4. It is further contended by him that samples had been drawn without notice to the importer or the appellant and that presence of an employee of theirs not being in pursuance of such notice but owing to peremptory and informal instruction by customs officials does not sit well with the allegation leveled now against the appellant which, to all intents and purposes, has been insinuated for making them the 'fall guy' in the episode. Relying upon the decisions of the Tribunal in Sainath Clearing Agency v. Commissioner of Customs (General), Mumbai [2011 (269) ELT 106 (Tri-Mumbai)] and of the Hon'ble High Court of Delhi in Exim Cargo Services v. ....
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....uring that such fraudulent activities are not repeated. 6. It would not be appropriate for us, at this stage, to dwell upon the facts cited by both sides as those are relevant to the proceedings designed to follow suspension of licenses. Nor would it be appropriate for us to dwell on decisions cited by Learned Counsel except as directly pertain to suspension of licenses in similar circumstances. We entertain no doubt that suspension is an ad interim measure and, prompted by facts peculiar to alleged breach of obligation devolving upon customs brokers, brooking no delay in separating the broker from the workplace. As suspension is but a preliminary, and merely tentative, signification of intent to saddle detriment sanctioned by the Regulati....
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....a Customs Broker where an enquiry against such Customs Broker is pending or contemplated: Provided that where the Principal Commissioner or Commissioner of Customs may deem fit for reasons to be recorded in writing, he may suspend the license for a specified number of Customs Stations. (2) Where a license is suspended under sub-regulation (1), the Principal Commissioner of Customs or Commissioner of Customs, as the case may be, shall, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs Broker whose license is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Cust....
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....circumscribing intended by law. 10. The latitude, and restraint, inherent in the design of regulation 16 of Customs Broker Licencing Regulations, 2018 thus revealed upon careful perusal is made more conspicuous by the appending of the non obstante clause: suspension is not a necessary pre-requisite for initiation of inquiry with intent to revoke licence or impose penalty and, while intention so to do has no bearing on suspension, decision to proceed with enquiry is inevitable precursor for continuation of suspension. It is the latter that we are concerned with in resolving this dispute. 11. The allegation of substitution of samples has not attained final determination as fact and there is no evidence, as yet, linking the appellant to the ....
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....Regulations, is confined to the restricted framework therein. To such extent is the intrusive superintendence that no 'employee' of a broker has existence but upon acknowledgement by the authority designated for each class of persons in regulation 13 of Customs Broker Licencing Regulations, 2018. Every person in a master-servant relationship with the person in possession of licence under the Regulations has no standing as employee except by such acknowledgement. It is only in this circumscribed equation of 'employee' and 'customs broker' under the Regulation that vicarious responsibility of the licencee for acts of omission and commission may be triggered for initiation of proceedings under regulation 17 of Customs Broker Licencing Regulati....